'Delay, deny, don't pay': How CTP insurance turned into a nightmare

By Carrie Fellner

When a prime mover came hurtling around a corner towards him, its oversized load jutting over the wrong side of the road, Tony Webb had no time to react.

The then 23-year-old, on his way to work in Dubbo in 2007, attempted to veer off the Mitchell Highway. But the truck collected the side of his Triton dual cab ute, totalling the vehicle.

The Triton dual cab 4WD ute Tony Webb was driving when he was hit by a truck in 2007.

Mr Webb was cut from the mangled wreckage and rushed to hospital, where he underwent multiple blood transfusions and was treated for a large chest wound and injuries to his lung and internal organs.

Although he survived, Mr Webb’s nightmare had only just begun.

He would spend the next decade in a bitter contest with insurance giant Allianz, as he sought compensation for permanent and debilitating injuries. He was covertly surveilled for seven years and accused of “embellishing” his injuries for financial gain.

Tony Webb at his home in Wodonga.

Photo: Mark Jesser

The David and Goliath battle ended in court earlier this year with Mr Webb vindicated by the judge and awarded a $2.07 million payout.

But Mr Webb wouldn’t wish his experience, which left him suicidal, “on his worst enemy”.

“I was bullied at school but I’ve never been bullied as bad in my life as what I went through in court,” Mr Webb said. “They know how to hit you in the head and mentally make you want to give up.”

For many drivers in NSW, their only brush with the compulsory third party (CTP) scheme is the annual, mandatory purchase of a green slip, covering their liability should they injure someone on the roads.

Traditionally the market has been highly lucrative for insurers, yielding about $2.9 billion in “super profits” in 15 years, or an average profit margin of about 19 per cent annually.

Last year NRMA was the dominant player, with 31 per cent market share, closely followed by Suncorp (GIO and AAMI) at 29 per cent. The market is rounded out by German behemoth Allianz and global insurance provider QBE.

Tony Webb with his children, Eden (left), and Jye.

Photo: Mark Jesser

An overhaul of the NSW scheme last December brought drivers some relief from soaring premiums, the highest in the country. The average green slip price plunged around 19 per cent to $509, compared to 12 months earlier.

But the legal fraternity has warned the reforms have failed to tackle an “aggressive” and “adversarial” culture among some CTP insurers, with allegations of predatory tactics being used to deny, delay or minimise payouts to accident victims.

A Herald investigation has unearthed multiple instances of the injured having their claims dragged out or being denied compensation on the basis of false or misleading information provided by insurers.

Allianz was Mr Webb's insurer for CTP.

Photo: Christopher Pearce

“Unfortunately some insurers cannot be trusted to act as good corporate citizens,” the Australian Lawyers Alliance warned, adding this was regrettable for the “relatively better behaved” insurers.

“The learned experience is that they have to be collectively treated as profit maximisers who will take any opportunity to deny any payment to any claimant unless forced to make it.”

Critics have also warned the new scheme will curtail payouts to the most seriously injured, is cutting innocent victims off from benefits before they are fully recovered, removing the right to legal representation and placing insurers in charge of resolving disputes.

NSW Minister for Finance Victor Dominello.

Photo: Orlando Chiodo

The criticisms have been strenuously rejected by the insurance industry, which played the complaints down as “teething issues” and accused lawyers of speaking out of self-interest.

“Hundreds of millions of dollars in insurer profits and costs and legal fees have been removed from the scheme which allows a greater proportion of premium collected to be paid as benefits to injured people,” said Mr Dominello.

But a personal injury specialist and partner at Carroll & O’Dea Lawyers, Olivia Mailian, said the focus on premium price drops had overshadowed the consequences of the changes for road users.

Lawyer Olivia Mailian says the focus on premium price drops has overshadowed the consequences of the changes for road users.

“The state government advertised the CTP green slip refund well but it hasn’t necessarily informed residents of NSW about the effects this legislation will have in relation to what compensation they can recover and who is entitled to recover that compensation,” she said.

“We will have to be delivering that news.”

‘I got kicked hard’

In May 2007, Tony Webb had “found his niche”. The Narromine man had secured a job in mining, had a devoted partner and was talented at golf, playing with a handicap of five.

Today, Mr Webb is unable to hold down a full-time job and a return to the golf course is out of the question. Eleven years after the horrific car accident, Mr Webb struggles to walk far, suffers spasms and chronic pain in his chest, back and neck.

The toll of the accident is also unseen. Mr Webb has short-term memory loss and becomes irritable and frustrated trying to complete day-to-day tasks. Diagnosed with post traumatic stress disorder and depression, he experiences panic attacks, “gruesome” nightmares and bouts of incontinence.

Under the NSW system, any person that suffers greater than 10 per cent whole person impairment in a crash qualifies for “pain and suffering” payments on top of any wage loss or medical costs.

Mr Webb’s doctor diagnosed him at 22 per cent impairment. But the insurer – which withheld one of its medical reports from the court – tried to argue Mr Webb did not meet the threshold.

The judge, Leonard Levy SC, noted that Mr Webb’s credibility was “attacked”, with the insurer’s medical experts accusing him of “malingering, exaggerating or embellishing his problems”.

Seven years' worth of video surveillance footage had been taken, with edited highlights played in court.

“My social life’s gone really bad, I lost a lot of friends because of the accident,” Mr Webb said.

“Because I visit a few mates they tried to make out like I had hundreds and hundreds of friends.

“It was things that I’d told them that I’d done, I’d told them I try to mow the lawn ... I knew they were following me, but I didn’t care, I had nothing to hide.”

Judge Levy was critical of the exercise, describing the surveillance footage shown as “haphazard” and “opportunistic”.

The judge also found the insurer has “exaggerated or overstated” some of Mr Webb’s activities, including alleging he carried a “large dog” when the dog in the footage was not large.

At one point as the footage was being played, Mr Webb was overcome with distress.

“It affected me that hard in court ... I lost my bowels in court,” he said.

When he returned, he jammed a used incontinence pad in front of the insurer’s barrister, silk Anthony Black.

“Just seeing what I’ve got to deal with Mr Black. Do you see that? You sit in that all day and see how I feel,” he said.

Mr Webb apologised for the outburst, but said he had been “pushed and pushed and pushed”.

“I just snapped. If you knew someone wasn’t well, you wouldn’t keep trying to mentally break them,” he said.

“They knew I was no good at words, they knew I couldn’t concentrate, they knew I didn’t want to go to Sydney.

“Their goal was to get me into court because that would be a big advantage. My solicitor kept saying ‘hold in there, you need to hold in there.’”

Judge Levy “rejected in their entirety” the aspersions cast against Mr Webb, finding both he and his partner, Tabitha Triplett, were “truthful and reliable” in their evidence.

“There is little room for doubt that in the events of the accident, the plaintiff underwent a frightening experience that resulted in chronic post traumatic stress disorder ... and major depression.

“The plaintiff’s persistent psychiatric disabilities, including anger outbursts, have rendered him to be a dysfunctional man who feels helpless and hopeless in his situation.”

Mr Webb credits his court win to Ms Triplett’s strength and poise in the witness box.

“My partner is amazing, the lawyer could not trip her up,” he said. “The judge was very understanding, he was a very good judge. We were very lucky.”

The lawyers agreed to settle on 20 per cent contributory negligence by Mr Webb, even though the court found the truck had been on the wrong side of the road when it struck his car. The decision reduced the size of the payout to $1.6 million.

A further 30 per cent went to Mr Webb’s lawyers, and between $50,000 and $60,000 came from his own pocket for medical reports.

Bridging the distance

When contacted for comment by Fairfax Media, Allianz defended its decision to take the matter to a court hearing rather than bring it to an early settlement.

“Allianz always endeavours to come to an agreed settlement with claimants without the need for a court hearing and this occurs in the overwhelming majority of cases,” a spokesperson said.

“On occasion, however, the distance between each party’s settlement offers is so large that the guidance of the court is required.

“As indicated in the judgment, Allianz was in receipt of independent medico-legal reports that raised issues in relation to the appropriate amount of compensation.”

The spokesperson declined to comment on the reforms to the CTP scheme, but pointed out that during the consultation process, it had supported the “retention of a full common law compensation system”.

A slow rebuild

With the remaining money, Mr Webb has bought a few acres of cheap land on the outskirts of Wodonga. He plans to build a house and a shed there for his family.

The end of his courtroom ordeal has brought mixed emotions for Mr Webb . He accepts the physical and psychological pain from the accident will “never heal”, but is determined to persevere for the sake of his partner, son Jye, 9, and daughter Eden, 2.

“All the insurance companies care about is their money,” he said.

“They’ll take your money off you as quick as they can for you to pay your insurance. But if they owe you, they will not pay you.

“The hardest thing is there’s people out there taking advantage of the system and they stuff it up for the people that are in serious need, trouble and suffering.”